Australian Securities Commission v Kippe, Maxwell Alfred & Anor [1996] FCA 517

Australian Securities Commission v Kippe, Maxwell Alfred & Anor [1996] FCA 517

A proceeding for a banning order under s829 of the Corporations Law is not a proceeding for the imposition of a penalty within s68(3)(b) of the Australian Securities Commission Act 1989 (Cth), because the purpose and direct legal effect of a banning order is protective and preventive: it removes a perceived threat to the public interest and public confidence in the securities and futures industry, rather than punishing the person for an offence or contravention. The grounds in s829 include non-blameworthy matters such as insolvency and incapacity, supporting the conclusion that the provision is not penal.

Jurisdiction
Australia
Judgment Date
28 June 1996
Procedural Posture
Application for Judicial Review of a Decision of the Administrative Appeals Tribunal / Federal Court Final Determination of Application
Outcome
Application granted; decision of the Deputy President of the Administrative Appeals Tribunal set aside; declaration made; matter remitted to the Administrative Appeals Tribunal; first respondent ordered to pay the applicant's costs.
Legal Topics
['banning Order Under S829 of the Corporations Law' 'privilege Against Self Incrimination' 'proceeding for the Imposition of a Penalty' 'admissibility of Compelled Examination Evidence' 'protective and Punitive Statutory Provisions']
['corporations Law' 'administrative Law' 'evidence'] ['banning Order Under S829 of the Corporations Law' 'privilege Against Self Incrimination' 'proceeding for the Imposition of a Penalty' 'admissibility of Compelled Examination Evidence' 'protective and Punitive Statutory Provisions']

Case Brief

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Procedural Posture

Application for Judicial Review of a Decision of the Administrative Appeals Tribunal / Federal Court Final Determination of Application

Legal Issues

  1. 1 ['Whether a proceeding for a banning order under s829 of the Corporations Law is a proceeding for the imposition of a penalty within s68(3)(b) of the Australian Securities Commission Act 1989 (Cth).' "Whether statements made and the signed record of examination under s19 of the Australian Securities Commission Act 1989 (Cth), after claims under s68(2), were inadmissible against Kippe in the Commission's consideration of a banning order and in AAT review proceedings."]

Ratio Decidendi

A proceeding for a banning order under s829 of the Corporations Law is not a proceeding for the imposition of a penalty within s68(3)(b) of the Australian Securities Commission Act 1989 (Cth), because the purpose and direct legal effect of a banning order is protective and preventive: it removes a perceived threat to the public interest and public confidence in the securities and futures industry, rather than punishing the person for an offence or contravention. The grounds in s829 include non-blameworthy matters such as insolvency and incapacity, supporting the conclusion that the provision is not penal.

Court Disposition

Application granted; decision of the Deputy President of the Administrative Appeals Tribunal set aside; declaration made; matter remitted to the Administrative Appeals Tribunal; first respondent ordered to pay the applicant's costs.

Orders

  • ['The application be granted.' 'The decision of the Deputy President of the Administrative Appeals Tribunal be set aside.' 'It is declared that the proceeding for a banning order under s829 of the Corporations Law is not a proceeding for the imposition of a penalty within s68(3) of the Australian Securities...